ASBCA 62957

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Derian, Inc. ) ASBCA No. 62957 ) Under Contract No. W912EF-19-C-0006 ) APPEARANCE FOR THE APPELLANT: Mr. Mark Jensen President APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Michaela M. Murdock, Esq. Engineer Trial Attorney U.S. Army Engineer District, Walla Walla OPINION BY ADMINISTRATIVE JUDGE TAYLOR ON THE GOVERNMENT’S MOTION FOR PARTIAL RECONSIDERATION The government moves for a partial reconsideration of the Board’s August 25, 2023, decision granting, in part, the appeal of Derian, Inc., ASBCA No. 62957, 23-1 BCA ¶ 38,425 (familiarity with that decision is presumed). The government requested the Board reconsider two rulings. First, the government requests the Board reconsider its inclusion of $13,156 for the foot valves in its calculation of the contract price. Second, the government requests the Board reconsider its ruling denying the government’s liquidated damages assessment. For the reasons stated below, we deny the government’s motion. DECISION I. Standard Of Review For Motions For Reconsideration In deciding a motion for reconsideration, the Board will determine “‘whether there is newly discovered evidence or whether there were mistakes in the decision’s findings of fact, or errors of law.’” CJW Contractors, Inc., ASBCA No. 63228, 23-1 BCA ¶ 38,402 at 186,602 (quoting ADT Constr. Grp., Inc., by Timothy S. Cory, ASBCA No. 55358, 14-1 BCA ¶ 35,508 at 174,041). A motion for reconsideration does not give the moving party another opportunity to “present arguments previously made and rejected.” Assist Consultants Inc., ASBCA Nos. 61525, 62090, 21-1 BCA ¶ 37,946 at 184,297. A motion for reconsideration also does not give the moving party the opportunity to advance arguments that “properly should have been presented in an earlier proceeding.” Dixon v. Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014) (citing Bluebonnet Sav. Bank, F.S.B. v. United States, 466 F.3d 1349, 1361 (Fed. Cir. 2006). Accordingly, the moving party bears the burden to present “‘a compelling reason why the Board should modify its decision.’” CJW Contractors, Inc. 23-1 BCA ¶ 38,402 at 186,602 (quoting Philips Lighting N. Am. Corp., ASBCA No. 61769 et al., 21-1 BCA ¶ 37,821 at 183,647). II. The Government’s Assertions Of Error A. The Board’s Inclusion of the Foot Valves in the Contract Price Calculation Is Correct In its motion for reconsideration, the government first asserts that the Board erred in awarding Derian costs for the foot valves (gov’t mot. at 2-4). The government misinterprets our decision. Our decision found the amount the government determined Derian was entitled to for the foot valves in its final decision should be included in the contract price. Derian, 23-1 BCA ¶ 38,425 at 186,760 (citing to finding 48 at 186,749). Contrary to the government’s assertion, our decision did not award Derian an additional monetary amount for the foot valves. In its response to the government’s motion for reconsideration, Derian correctly notes that failing to include the foot valves in the contract price would result in an underpayment to Derian (app. resp. at 3). Our decision established the final contract price resulting from the government’s deductive change and Derian’s various equitable adjustment claims. Derian, 23-1 BCA ¶ 38,425 at 186,760. The contract price following the government’s issuance of Modification No. A00004 on May 13, 2021, was $2,263,279.71. Id. at 186,749 (finding 46). In our decision, we used $2,263,279.71 as the starting point for calculating the correct contract price. This amount did not include the foot valves. The government added the foot valves claim amount to the contract price via Modification No. A00005 on August 4, 2021 (gov’t mot. at ex. 1). 1 Hence, we correctly found that we must include the foot valve amount in our contract price calculation. The government’s subsequent submittal of Modification No. A00005 with its motion does not change that conclusion. The parties do not dispute that the total amount paid to Derian under the contract was $2,044,870.41. Derian, 23-1 BCA ¶ 38,425 at 186,760. This amount included payment for the foot valves (app. resp. at 2).